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2002 DIGILAW 120 (ALL)

HARI SHANKAR MISHRA v. COMMISSIONER, JHANSI

2002-01-21

S.K.SINGH

body2002
S. K. SINGH, J. ( 1 ) BY means of this writ petition, the petitioner has prayed for quashing of the impugned order dated 25. 3. 1996 and 15. 10. 1992, passed by respondent Nos. 1 and 2, Annexures-12 and 5 respectively. ( 2 ) PETITIONER was initially appointed as Junior Clerk by the District Planning Officer in the department of Planning Office district Jalaun in the year, 1967. As has been pleaded by the petitioner In the year, 1976, as he did not obey the direction of the authorities of getting family planning operation done, his services were terminated in the year 1976 itself. Against this, petitioner made representation before the respondent No. 1 who after considering the facts allowed the petitioners claim and directed for his reinstatement by order dated 26th July, 1976. In the order of the respondent No, 1 which has been annexed as Annexure-1 to the writ petition, it has been found that serious lapses and vindictive attitude was adopted by the authorities in terminating the petitioners service. In pursuance of the order of respondent No. 1, petitioner was reinstated and thereafter he was made permanent on the post of Junior Clerk on 1. 4. 1979 and he was given promotion also on the post of Senior Clerk by order dated 14. 11. 1979 (Annexure-7 to the writ petition ). It has been stated that as the authorities were annoyed on account of the decision of the respondent No. 1 having gone in petitioners favour, they Issued a notice dated 20. 5. 1982 by which explanation was called In respect to the absence of the petitioner from duty on certain dates. The notice dated 20. 5. 1982 states that within three days explanation is to come failing which petitioner will be placed under suspension. This notice dated 20. 5. 1982 is annexure-3 to the writ petition. It appears that by an order of the same date dated 20. 5. 1982 (Annexure-4 to the writ petition), petitioner was ordered to be reverted on the post of Junior clerk. Petitioner started representing the matter through proper channel against the order dated 20. 5. 1982 against his reversion and it is at this stage, it has been claimed by the petitioner that he fell ill w. e. f. 30. 9. 1982. 5. 1982 (Annexure-4 to the writ petition), petitioner was ordered to be reverted on the post of Junior clerk. Petitioner started representing the matter through proper channel against the order dated 20. 5. 1982 against his reversion and it is at this stage, it has been claimed by the petitioner that he fell ill w. e. f. 30. 9. 1982. In respect to the petitioners ailment as has been pleaded in the writ petition vide paragraphs 17 and 22, due information was given by the petitioners wife from time to time, along with medical certificate and it is only after recovery from ailment, petitioner gave his joining on 25. 10. 1986. As Assistant Engineer refused to accept joining, petitioner made representation to the District Development Officer and after repeated representation/reminders petitioner came to know on 10. 5. 1988 that his services had been terminated as far back as on 15. 10. 1982. It is on coming to know about the order dated 15. 10. 1982, on 10. 5. 1988 petitioner claims that he filed representation on 11. 5. 1988 to the respondent No. 1 which came to be decided by the order of the respondent No. 1 dated 25. 3. 1996, after order of this Court dated 17. 1. 1996 passed in Writ Petition No. 2113 of 1996. Respondent No. 1 rejected petitioners representation by the aforesaid order dated 25. 3. 1996 which made the petitioner aggrieved to come up to this Court. ( 3 ) LEARNED counsel submits that there has been no adverse entry to the petitioners credit and his services has been throughout satisfactory right from 1967 onwards and it is only in the year 1976 that the petitioner was subjected to undue harassment when petitioners services were terminated, that too was set-aside by the respondent No. 1 and the petitioner came to be reinstated. Learned counsel submits that it is on account of setting-aside the vindictive action of the respondent by the order of the Commissioner dated 26. 7. 1976, a notice was given on 20. 5. 1982 to submit explanation about his absence on certain dates but on the same date, i. e. , 20. 5. 1982 order of reversion was passed. Learned counsel submits that it is on account of setting-aside the vindictive action of the respondent by the order of the Commissioner dated 26. 7. 1976, a notice was given on 20. 5. 1982 to submit explanation about his absence on certain dates but on the same date, i. e. , 20. 5. 1982 order of reversion was passed. It has been further submitted that although the matter about reversion of the petitioner was being pursued by the petitioner by filing representation/ reminders and it is in the meantime petitioners service was terminated by the order dated 15. 10. 1982, as passed by the respondent No. 2. Learned counsel argues that the Impugned order of the respondent No. 2 is apparently arbitrary, punitive and is without affording proper opportunity to the petitioner and therefore, the same is liable to be quashed. ( 4 ) LEARNED standing counsel in response to the aforesaid submission, on the facts so stated in the counter-affidavit submits that the charges against the petitioner were duly proved and therefore, on the facts, respondent No. 2 has taken a correct decision to remove petitioner from service. In the counter-affidavit various details in respect to notice as has been issued to the petitioner at several occasions have also been annexed which was placed during the course of the arguments and on the basis of these material it has been argued that the petitioner is not entitled to get any relief. ( 5 ) IN the light of the aforesaid submissions as has come across the bar, pleading as has been set forth and the materials as is available have been examined. It appears that without going into the detailed arguments as has been placed, writ petition can be disposed of on a very short ground that the action of the respondent No. 2 is in gross violation of Principles of Natural Justice. ( 6 ) THERE appears to be no dispute about the fact that petitioner was a confirmed Government servant. He was working on the post of Junior Clerk from which he was promoted as Senior clerk vide order dated 14th November, 1979 (Annexure-2 to the writ petition ). ( 6 ) THERE appears to be no dispute about the fact that petitioner was a confirmed Government servant. He was working on the post of Junior Clerk from which he was promoted as Senior clerk vide order dated 14th November, 1979 (Annexure-2 to the writ petition ). In the year 1976, when the petitioner was working as Junior Clerk on account of non-accepting the direction of the departmental authorities to get family planning operation done, petitioner was removed from service which was found by the respondent No. 1 to be most illegal and harassment to the petitioner and by order dated 26. 7. 1976 petitioner came to be reinstated, On the facts of the present case it appears that the petitioner was given notice dated 20. 5. 1982 for explaining his absence from duty on certain dates and on the same date he was ordered to be reverted in respect to which petitioner appeared to have made representations. The papers as available before this court as appended along with writ petition and counter-affidavit discloses that after show cause notice dated 21. 6. 1982, a reply was called upon which was not found to be satisfactory and the petitioner was removed from service. The impugned order of the respondent no. 2 dated 15. 10. 1982, states that reply of the petitioner was not found satisfactory in respect to the charge of his absence from duty on various dates and, it appears that the petitioner do not take interest in discharging his duties and thus he is liable to be removed. The facts as exists on record makes it clear that in respect to the alleged mis-conduct on the part of the petitioner no enquiry officer was appointed and no full fledged enquiry took place and it is just by giving show cause notice after taking reply order of removal from service was passed. ( 7 ) IN view of this it appears that the action as has been taken against the petitioner is In clear violation of the Principles of Natural Justice, as punishment is to be awarded normally after undergoing a regular process of enquiry unless there is some exception for the same. In the similar set of facts this Court In the decision in S. C. Sharma v. Managing Director and Ors. In the similar set of facts this Court In the decision in S. C. Sharma v. Managing Director and Ors. , 2000 UPLBEC 541 , has quashed order of removal as there was violation of Principles of Natural justice. Otherwise also the charges against the petitioner were not, of any serious lapse on his part concerning to the financial irregularity and the entire allegation as is contained in the order dated 15. 10. 1982 appears to be about the petitioners unauthorised absence on number of dates for which the extreme penalty of removal from service may be justified or not, was also liable to be kept in mind by the respondent No. 2, as for every lapse the extreme punishment may not be warranted. Although this Court is not to assess the circumstances for testing quantum of punishment which is to be imposed on delinquent employee but it has been repeatedly said by this Court as well as the Apex Court that if the punishment imposed on the delinquent employee shocks the conscience of the Court it can be interfered. The recent decision of the Supreme Court in U. P. State Road Transport Corporation and Ors. v. Mahesh Kumar Misra and Ors. , 2000 (2)AWC 1475 (SC) : AIR 2000 SC 1151 , can be referred. ( 8 ) THUS, without going into the merits of the charges against the petitioner it appears that the impugned action as has been taken by the respondent No. 2 of his removal from service cannot be sustained, as the impugned punishment has been given without holding any disciplinary proceedings. ( 9 ) IN view of the aforesaid analysis, the writ petition succeeds and is allowed. The impugned order as passed by the respondent Nos. 1 and 2 dated 25. 3. 1996 and 15. 10. 1982 (Annexures-12 and 5 respectively) are hereby quashed. It will be open for the respondents to proceed against the petitioner after serving charge-sheet and holding regular disciplinary proceedings, in accordance with law. ( 10 ) PARTIES are directed to bear their own costs. .